One of the biggest concerns employers have had about the rise of fully remote and hybrid working is the loss of regular impromptu discussions, which are thought to foster team spirit, embed organisational culture and spark innovation.   However, research recently published in the Harvard Business Review suggests that this concern is ever more misplaced.   

Researchers from the University of Texas and the software company Vyopta scrutinised how remote meetings (defined as meetings where at least one person is remote from those attending in person) have changed since the start of the pandemic.  Despite concerns about Zoom fatigue and disengaged staff who are quietly quitting, the research showed that, in fact, remote meetings are being held more frequently, efficiently and informally than used to be the case.

How has remote collaboration changed between 2020 and 2022?

The researchers gathered metadata from all Zoom, Teams and Webex meetings from ten large global organisations from various sectors including technology, healthcare, energy and financial services.  The researchers compared snapshots of a six-week period across April to May 2020, with the same periods in 2021 and 2022.  This dataset resulted in a total of more than 48 million meetings attended by more than 500,000 employees. 

The researchers discovered that remote meetings have changed in several important ways since the beginning of the pandemic:

• Remote meetings have become more frequent: the data showed that there was a 60% increase in the number of remote meetings per employee between 2020 and 2022. In 2020, employees attended five remote meetings per week on average.  By 2022, this had risen to eight per employee.  This is notable given that in 2020 all meetings would have had to be remote due to the closure of workplaces.  You would be forgiven for expecting to see a higher number of remote meetings in 2020 compared to 2022.  However, remote meetings have increased, suggesting employers and workers have embraced video conferencing technology and the efficiencies it offers.
• Remote meetings have become shorter, smaller and more spontaneous: the data also indicated that workers have become more agile in their approach to remote meetings. Meetings decreased in length by 25% (from 43 minutes on average in 2020 to 33 minutes on average by 2022) and became smaller (dropping from an average of 20 participants in 2020 to 10 participants by 2022).  The data also revealed a large increase in the number of one-to-one remote meetings, rising from 17% to 42%.  There was also a very significant jump in the number of unplanned one-to-one meetings over this period.  In  2020 just 17% of one-to-one meetings were spontaneous, but by 2022 this had grown to 66%.
• Leavers became disengaged: perhaps unsurprisingly, the data revealed that employees who went on to leave their organisation attended substantially fewer meetings, suggesting that they had become disengaged for some time before leaving. Leavers attended 67% fewer spontaneous one-to one-meetings, 22% fewer planned one-to-one meetings and 20% fewer planned group meetings.

 What are the key learning points for employers?

Overall, the research supports the view that remote workers are not disengaged hermit-like creatures, but active participants in the workplace.  No doubt workers have become more adept at using video conferencing technology over the last two years and this may go some way to explaining the increase in remote meetings.  However, the change in the nature of the meetings – shorter, smaller and more spontaneous – suggests a more flexible approach to remote meetings has become embedded within organisations.  It seems that workers are willing and able to use remote meetings in a more relaxed way, perhaps replacing the corridor catch up and the watercooler chat. 

If the research data is representative of a wider shift in the workplace towards more agile remote meetings, then this should allay some of the concerns employers have about the impact of remote working on collaboration and communication.  However, the value of in-person meetings will, to some extent, depend on the sector and type of business. 

The researchers suggest three action points for employers to help bolster this trend:

• Encourage an overlap in working patterns: in order for unplanned meetings to happen, there needs to be some degree of shared working time between employees. Where everyone is on the same or similar working pattern and in the same time zone, this should not be a problem.  Where there are differences, then securing some overlapping time should be a priority to allow remote meetings to take place,
• Make it easy for people to meet: as well as ensuring an overlap in working time, employers should find other ways to make remote meetings as stress-free as possible. Ensuring that staff have easy access to video conferencing technology and understand how to use it is a vital first step.  Indeed, in one recent case an Employment Tribunal decided that an employer had failed to make reasonable adjustments by not rescheduling a remote meeting for a disabled employee who did not know how to use Teams.  Employers can also encourage remote meetings by not requiring participants to have their cameras on all the time.  “Zoom fatigue” is real and it is recommended that the default approach should be to have cameras off, and only turn them on when there is a clear benefit to doing so.  In other words, “cameras off” meetings take the place of phone calls and conference calls and “cameras on” meetings take the place of face-to-face interactions.
• Identify disengaged workers and try to reengage them: the data suggests that where a worker is attending fewer meetings, this is because they are disengaging from work. This may be an indicator that they are planning to do leave.  Employers may wish to collect and analyse data regarding attendance at meetings to try to identify staff who are disengaging and think about ways to bring them back on board.  Where an employer does not want to collect such data, another way to address the issue of potential disengagement is to encourage managers to talk openly with staff about the issue of team interaction and seek feedback from team members about how this can be improved.

Harvard Business Review – “No, Remote Employees Aren’t Becoming Less Engaged”

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

Two new opinions concerning the scope of data subject access requests under the GDPR have been handed down by advisors to the judges of the European Court of Justice (known as Advocate Generals).  We round up the headline points and consider the implications for employers.

Is a data subject entitled to know the identity of employees of the data controller who have accessed their personal data?

In the first case, the data subject worked for, and was also a customer of, a bank based in Finland.  He made a data subject access request and argued that he was entitled to know the names and job roles of all the people within the organisation who had viewed his personal data (both in his capacity as an employee and as a customer).  The bank refused to provide this information, arguing that the right of access enshrined in the GDPR did not extend to log data of the Bank’s processing system, which recorded which employees had accessed the system and when.  

In the Advocate General’s opinion, the right of access within the GDPR does not give a data subject the right to know the identity of employees who have accessed their personal data, where such employees were acting on the instructions of the data controller.  Nor could employees acting under the bank’s instructions be regarded as “recipients” of personal data.  This is an important point since data subjects are entitled to know the recipients or categories of recipients of their personal data.

You can read the Advocate General’s opinion here. 

Is a data subject entitled to receive a copy of the documents containing their personal data?

In the second case, the European Court of Justice (ECJ) was asked to rule on the right of a data subject to receive a copy of their personal data.  The Advocate General opined that a data subject’s right to a “copy” of their personal data means a right to be given a faithful reproduction of the data in intelligible form.  The exact format of the copy is to be determined by: (i) the specific circumstances of each case; (ii) the type of data requested; and (iii)  the needs of the data subject.  Although there is no automatic right to obtain a partial or full copy of the documents containing the personal data, this may need to be provided where it is necessary to ensure that the personal data is fully intelligible.  An example of this might be personal data contained in messaging platforms commonly used in the workplace such as Slack, where a basic export of the data is unlikely to be viewed as intelligible. 

You can read the Advocate General’s opinion here. 

What does this mean for employers?

It is important to pause to note that neither of these opinions are strictly binding on the UK Courts.  Nor are Advocate General opinions even binding on the ECJ – although they are influential and tend to be followed.  The ECJ decisions in these two cases are expected shortly.  ECJ decisions are also not binding in the UK, however, they may be taken into consideration by the UK Courts and the UK data protection regulator (the Information Commissioner’s Office (ICO)) where relevant to a matter before them.  Given that UK data protection law is based upon the GDPR, it is likely that a UK Court and/or the ICO would have regard to relevant ECJ decisions.  Furthermore, ECJ decisions concerning data protection remain relevant to employers with operations in member states of the EU, where the GDPR applies. 

In the meantime, the first opinion will strengthen an employer’s ability to resist requests for disclosure of the identity of employees who have accessed an individual’s personal data.  The second opinion simply underlines and reinforces the existing position in the UK, as set out in the ICO’s guidance on data subject access requests and reflected in previous decisions of UK courts.  The ICO guidance provides that:

“the right of access enables individuals to obtain their personal data rather than giving them a right to see copies of documents containing their personal data. You may therefore provide the information in the form of transcripts of relevant documents (or of sections of documents that contain the personal data), or by providing a print-out of the relevant information from your computer systems. While it is reasonable to supply a transcript if it exists, we do not expect controllers to create new information to respond to a SAR. Although the easiest way to provide the relevant information is often to supply copies of original documents, you are not obliged to do so.” (emphasis added)

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

The Court of Appeal has ruled that a Claimant could not proceed with a victimisation claim which had already arisen by the date he had entered into a COT3 settlement agreement with his employer.  The broad waiver wording was sufficient to settle potential claims in existence as at the date of the COT3 agreement.   

What happened in this case?

The Claimant was employed by Quick Release (Automotive) Ltd for just over one month in 2014.  After his employment terminated, he brought a race discrimination claim against them.   In January 2018, the Claimant applied for a job with a company called QRG, which was wholly owned by Quick Release.  He was rejected for that post on 19 February 2018.

On 1 March 2018, the Claimant and Quick Release settled the race discrimination claim by way of a settlement agreement conciliated by Acas, known as a COT3 agreement.  Under the COT3 agreement, the Claimant agreed to settle all claims he had or may have had against Quick Release arising directly, indirectly or in connection with his employment, its termination or otherwise.  This included, but was not limited to, any claims arising under the Equality Act 2010.

In May 2018, the Claimant brought a victimisation claim against Quick Release, alleging that they connived to reject him for the post with QRG because he had brought a race discrimination claim against Quick Release.  An Employment Tribunal held that the victimisation claim could not proceed as it fell within the scope of the COT3 agreement.

On appeal, the EAT held that the claim should not be considered as victimisation perpetrated directly by Quick Release, but rather as a claim that Quick Release knowingly assisted QRG to carry out the victimisation.  However, the EAT said that this claim was still covered by the COT3 agreement since it was a claim under the Equality Act 2010 which had arisen in connection with his employment with Quick Release.  The Claimant appealed to the Court of Appeal.

What was decided?

The Court agreed that the claim was properly categorised as a claim that Quick Release had knowingly assisted QRG to commit an act of victimisation.  The question was whether such a claim had been waived under the COT3 agreement.

The Court held that the claim was clearly covered by the wording used in the COT3 agreement as the claim arose “in connection with” the Claimant’s employment.  Furthermore, the purpose of the COT3 was to settle all claims that the Claimant had against Quick Release as of 1 March 2018, whether or not they were known about at that date.  Here, the circumstances giving rise to the victimisation claim arose on 19 February 2018 and so it was within the scope of the agreement.  The Court dismissed the appeal.

What does it mean for employers?

Although this decision is helpful, employers should be wary of viewing this decision as giving carte blanche to waive future claims within settlement or COT3 agreements.

We recently reported on the case of Bathgate v Technip UK Ltd, where the EAT decided that a settlement agreement (not a COT3 agreement) could not settle unknown future claims. However, Bathgate concerned a claim arising out of conduct which occurred after the settlement agreement had been signed, meaning the claim in question was a truly unknown future claim.  By contrast, in this case, the offending conduct had occurred before the Claimant agreed to waive his claims against the employer (and, therefore, is better described as an existing potential claim rather than an unknown future claim).

In fact, the real issue at play here was whether the broad wording of the COT3 agreement went far enough to cover an existing potential claim that had not yet been brought before a Tribunal.  Bathgate said that existing potential claims of this nature could be settled in a settlement agreement, but that general wording seeking to waive any claims would not be good enough.  Instead, the existing potential claim would need to be particularised in some way.

However, here, the Court of Appeal was concerned with a COT3 agreement rather than a settlement agreement. The Court held that general waiver wording settling “all claims” arising “directly or indirectly out of or in connection with” the employment, termination or otherwise is effective in a COT3 agreement. Employers wishing to achieve a settlement by way of a settlement agreement rather than a COT3 agreement should follow the approach set out in Bathgate.

Arvunescu v Quick Release (Automotive) Ltd

BDBF is a leading law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

The Court of Appeal has upheld a decision that an employee was not automatically unfairly dismissed on health and safety grounds when he was dismissed for refusing to attend work during the first Covid lockdown.

What happened in this case?

Mr Rodgers worked for Leeds Laser Cutting Ltd.  Following the announcement of the first lockdown on 23 March 2020, the Company told employees that the business would remain open but that it was putting in place measures to ensure the safety of individuals.   

A risk assessment was carried out by an external professional, which made various recommendations relating to social distancing, wiping down surfaces and staggering start/finish/break times.  In fact, the Company already had many of these measures in place prior to the risk assessment.  

On 29 March 2020, Mr Rodgers sent a text message to his line manager saying that he would not return to work until the lockdown had eased because he had a young child with sickle cell anaemia who could become very ill if he caught the virus.  In addition, he also had a seven-month-old baby who might have had the same health problems.

A month later Mr Rodgers was dismissed on the basis that he was absent without leave or explanation.  He brought a claim for automatic unfair dismissal, arguing that he had been dismissed because he had exercised his right not to return to a workplace which he reasonably believed presented a serious and imminent danger to health and safety and which he could not reasonably have been expected to avert.

What was decided?

Decisions of the Employment Tribunal and the Employment Appeal Tribunal

The Employment Tribunal decided that Mr Rodgers had not been automatically unfairly dismissed. 

It found that Mr Rodgers was concerned about the pandemic in general terms, but that he did not believe that there were circumstances of serious and imminent danger within the workplace.  He had not voiced concerns about any dangers and in his text message to his line manager he did not identify any specific risks nor make any indication that he would return if improvements were made.  Furthermore, his actions did not suggest he was particularly concerned, for example, he did not wear a face mask even though they were made available to him, he left his home during a period of self-isolation, and he also worked in a pub during the lockdown.

The Tribunal went on to say that even if he had believed there to be such danger within the workplace, that belief would not have been reasonable.  The workplace was large, with only a few people working at any one time, meaning it was not difficult to socially distance.  An independent risk assessment had been carried out and there were reminders about the need for regular handwashing.  Mr Rodgers acknowledged that this information had been communicated to him.  And even if he had a such a belief and it had been reasonable, he could have taken steps to avert the danger, such as handwashing, mask wearing and social distancing. 

Mr Rodgers appealed.  The EAT upheld the Tribunal’s decision and Mr Rodgers appealed again to the Court of Appeal.

Decision of the Court of Appeal

In a nutshell, Mr Rodgers argued that it was not necessary for the belief in a serious and imminent danger to be confined just to the workplace.  Rather, it was sufficient for him to hold a belief that serious and imminent danger was at large in society. 

The Court said that it would not be enough for the danger to arise only outside of the workplace, for example on the journey to work, noting that “…it is quite clear that the perceived danger must arise at the workplace”.  This did not necessarily mean that the danger has to be exclusive to the workplace – it could arise both inside and outside of the workplace.  However, the key requirement is that the employee has to believe that there is danger within the workplace itself. 

The Court said that the Tribunal was entitled to find that Mr Rodgers did not hold such a belief, and that even if he had it would not have been reasonable.  The appeal was dismissed.

What does this mean for employers?

The decision clarifies how health and safety dismissal claims will be approached by the Courts and Tribunals.  Importantly, an employee will not be protected where the danger they are concerned about arises only outside the workplace.  For example, if they did not want to attend work due to severe weather conditions or violent protests on the streets surrounding the workplace (however, the employer’s general duties to take care of the health and safety of their employees would be relevant and may mean the employer needs to direct staff to stay away in such circumstances).  We know that the danger must arise within the workplace, albeit that it may also arise outside of the workplace. 

On the facts of this case, Mr Rodgers actions simply did not suggest that he believed that there was a danger in the workplace.  Even if he had got over that hurdle, his claim would still have failed on the basis that it would have been unreasonable in light of the steps taken by the employer to mitigate the danger.  The takeaway point here is that where an employer has taken appropriate health and safety measures, complied with relevant laws and guidance and engaged with employees about its strategy, it will be very challenging for an employee to get over the hurdle of showing that they had a reasonable belief that there were circumstances of serious and imminent danger in the workplace. 

It is worth remembering that Mr Rodgers did not have two years’ service and so was unable to bring an “ordinary” unfair dismissal clam.  This forced him down the route of having to show he was “automatically” unfairly dismissed on health and safety grounds (a claim which does not require two yeas’ service).  This was a higher hurdle and one that, on the facts of the case, Mr Rodgers could not meet.  Had Mr Rodgers had been able to bring an ordinary unfair dismissal claim he may well have succeeded, and both the Tribunal and Court of Appeal suggested that this could have been the case.   To avoid this, employers should always ensure that there is a potentially fair reason for dismissal and that a fair process is followed before deciding whether to dismiss.  

Rodgers v Leeds Laser Cutting Ltd

BDBF is a leading law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

The Government has published its response to the Women and Equalities Select Committee report which had recommended significant changes to the law on menopause in the workplace.  In this briefing, we outline which reforms the Government has accepted and rejected.

What was the purpose of the menopause inquiry?

On 23 July 2021, the House of Commons Women and Equalities Select Committee (the Committee) opened an inquiry into the impact of menopause in the workplace.  The purpose of the inquiry was to receive evidence on current workplace practices and views on whether existing discrimination legislation sufficiently protected workers going through the menopause, or whether more needed to be done.  Currently, discrimination against workers going through the menopause is only covered by the Equality Act 2010 where it is connected to one of the existing nine protected characteristics such as age, sex and disability.  The inquiry also looked at whether employers should be compelled to put in place workplace menopause policies.

The inquiry closed on 17 September 2021 and the Committee published its report on 28 July 2022.  The report made a number of recommendations in the fields of health, workplace and equality.  In this briefing we consider the workplace and equality recommendations only.

The Government published its response on 24 January 2023, setting out which recommendations it would take forward and which had been rejected.

Which recommendations will be taken forward?

Appointment of a Menopause Ambassador

The report said that the Government had a key strategic role in helping businesses and should lead the way in developing and disseminating good practice on managing the menopause at work. The report asked the Government to appoint a “menopause ambassador” to work with stakeholders from business, unions and advisory groups to encourage and disseminate awareness, good practice and guidance to employers.  The menopause ambassador should publish biannual reports on the progress made by businesses, including real life examples of good and poor practices.

The Government has accepted this recommendation “in principle”.  In practice, it proposes to appoint a “Menopause Employment Champion”, something that it had, in fact, already promised in July 2022.  As yet, no such champion has been appointed. 

The response envisages that the champion will spearhead a campaign outlining the benefits of recruiting and retaining menopausal workers.  The appointment will be a DWP ministerial appointment, reporting to and consulting with DWP ministers at regular intervals.  The Government says it is supportive of biannual progress reports, but this would need to be determined once the appointment had been made.  It is also envisaged that the champion will work with the Women’s Health Ambassador on the issue of menopause and employment, with the champion focusing on matters affecting employers and the ambassador engaging with a broader range of stakeholders.

Introduction of Day 1 right to request flexible working

Flexible working was referred to repeatedly in the evidence before the inquiry as being particularly helpful for menopausal employees.  Back in February 2021, the Committee had recommended the introduction of a “Day 1” right to request flexible working and later that year the Government opened a consultation on the issue.  That consultation closed on 1 December 2021, and the Government’s response was published in December 2022.  In that response, the Government committed to make the right to request flexible working a Day 1 right, as well as supporting a Private Member’s Bill which would make a number of other changes to the flexible working regime.  You can read more about that response here.

The report recommended that the Government bring forward legislation before the end of the current Parliament to make the right to request flexible working a Day 1 right for all.  In addition, the Government was urged to issue guidance encouraging employers to grant all reasonable requests for flexible working rather than placing the burden on the employees to justify their requests.

Unsurprisingly, in light of the response to the flexible working consultation, the Government has accepted this recommendation, although no timeline for the new legislation has been provided.  New guidance may be introduced but no firm commitment is made.

Publication of new guidance on the law

Despite there being existing legal obligations under health and safety and equality laws, the report noted that neither the Health and Safety Executive (HSE) nor the Equality and Human Rights Commission (EHRC) had published any form of guidance on their websites in respect of the menopause.  The report recommended that both the HSE and the EHRC publish new guidance on the legal considerations when supporting employees experiencing menopause.

The Government has accepted the recommendation for the HSE to publish guidance.  It refers to guidance on supporting disabled people and those with long-term health conditions which is already due to be published by the HSE.  It is said this guidance could apply to menopausal workers.

As far as the EHRC is concerned, the response says that as an independent public body it will be for the EHRC to consider what is needed.  The response says it will share the recommendation with the EHRC.

Which recommendations have been rejected?

Publication of model menopause policies

Evidence to the inquiry was divided on whether workplaces should be legally required to have menopause policies.  The Committee was not persuaded that a legal requirement for every workplace to have a menopause policy would embed meaningful change.  However, the report recommended that the Government produce a model menopause policy for employers, which should cover as a minimum:

• how staff can request reasonable adjustments and other support;
• advice on flexible working;
• sick leave for menopausal symptoms; and
• provisions for education, training and building a supporting culture.

The Government has rejected this recommendation as it does not believe a model menopause policy is necessary at the moment.  It asserts that “many organisations” have introduced workplace policies (without providing any indication of the number or percentage of UK employers that have done this).  It points to guidance for employers published by the CIPD and Acas and other initiatives being pursued by the Government related to occupational health and women’s health more generally.  In light of all of this the Government rejects the recommendation on the grounds it would “avoid the risk of duplication of efforts”.

Large public sector employer to trial specific “menopause leave”

The report noted that menopausal symptoms can have a significant, and sometimes debilitating, impact on women at work, which often led to periods of sickness absence. The presence of rigid sickness absence thresholds may, in turn, trigger formal absence management processes which lead to women leaving the workplace.

To counter this problem, the Committee asked the Government to work with a large public sector employer with a strong public profile to develop and pilot a specific “menopause leave” policy and publish proposals for a wider roll out within 12 months of the commencement of the scheme.

The Government has rejected this recommendation on the basis that it does not believe it is necessary.  It says their policy aim is to support menopausal women remain in the workplace and to ensure that employers are well equipped to support their workforce during the menopause.  The Government is focusing its efforts on disseminating best practice and encouraging employers to implement menopause policies and other forms of support such as flexible working.  The report asserts, without really explaining why, that specific menopause leave may be “counterproductive” to achieving this goal.

Commencement of the dormant dual discrimination provisions in the Equality Act 2010

Evidence to the inquiry was that because menopause is essentially an “intersectional” phenomenon (i.e. in the main it affects older women), the dormant dual discrimination provisions in section 14 of the Equality Act 2010 should be enacted. Enacting these provisions would entitle a worker to complain of discrimination arising out of the combination of two protected characteristics, rather than one as is presently the case.  This change would help menopausal workers who have typically found it difficult to succeed with complaints based on a single protected characteristic.  The Committee took a robust approach on this issue, stating that the current law “does not serve or protect menopausal women” and that section 14 is “shelf ready” and should be commenced immediately.

The Government has rejected this recommendation on the basis that if section 14 were to be implemented, it could have to be done wholesale and could not just be enacted to cover sex and age.  The response say this would create 20 dual protected characteristics in addition to age and sex (this is on the basis that pregnancy and maternity and marriage and civil partnership are not covered by section 14).  The Government says this would place a significant additional burden on employers and service providers

The rejection of this recommendation is unsurprising.  In fact, this is the second time that the Government has rejected the proposed enactment of the dual discrimination provisions as a way of tackling menopause discrimination.  In November 2021, the Government-appointed “Roundtable of Older Workers” recommended that the Government enact the dual discrimination provisions.  The Government rejected their recommendation, stating that the existing legal framework provided sufficient protection and further changes were not needed. 

Consult on making menopause the tenth protected characteristic in the Equality Act 2010

There was considerable support for creating a new protected characteristic of menopause on the basis that it would provide a direct and clear protection to those experiencing discrimination because of menopause.  Some of those giving evidence to the inquiry pointed out the disparity between the way pregnancy and menopause are treated in the workplace.  Pregnancy is legally protected, and menopause is not, even though all women will experience menopause but not all women experience pregnancy.  Some of those giving evidence also argued that if a new protected characteristic were created this should include a duty to make reasonable adjustments, in the same way that there is for disabled workers.

The Committee recommended that the Government urgently consult on introducing a new protected characteristic of menopause, including a duty to make reasonable adjustments for menopausal workers.  The report recommended that this consultation should launch by the end of January 2023.

The Government has rejected this recommendation.  Whilst agreeing that women should be “adequately protected from discrimination in the workplace” they were not satisfied that the evidence fully supported new legislation.  It is asserted that introducing a new protected characteristic was not necessarily the best approach to addressing discrimination.  It points to alternatives such as expanding the duty to make reasonable adjustments or expanding the definition of disability and/or the age discrimination provisions.  Yet, no commitments are made to introduce any such changes.

In rejecting the recommendation, the response highlights the importance of avoiding “unintended consequences” such as discrimination towards men suffering from long-term medical conditions or eroding existing protections.  It is said that any substantial changes to the Equality Act 2010 would require a full-scale review which was a “major undertaking which would necessarily be some years away”.

Conclusion

It is hard to view the Government’s response to the Committee’s report as anything other than paltry.  Upon closer inspection, the three recommendations which have been accepted are, in fact, existing commitments.   Furthermore, aside from the extension of the right to request flexible working (which, it should be remembered, is a right to request and not a right to have), the other two changes amount to the introduction of guidance and advice only.  These commitments do not compel employers to make any changes for menopausal workers and nor do they offer such workers any greater form of legal protection.  As the Chair of the Committee, Caroline Nokes MP, noted, the Government’s response is “complacent”, represents “a missed opportunity” and left her “unconvinced that menopause is a Government priority”.

Menopause and the workplace: Government Response

BDBF is a leading law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.